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Lane County Circuit Court

Pretrial program scrutinized

Lane County officials say it prevents violence, but some defense attorneys call it punishment before conviction

By Karen McCowan

The Register-Guard

Appeared in print: Sunday, Nov. 28, 2010, page A1

Pretrial release conditions are not supposed to be punishment.

But they feel punishing to many Lane County defendants accused of misdemeanor acts of domestic violence.

Take former Eugene resident Roger Alexander, 25, who moved to Utah in part because of his experience here. A biologist and legal immigrant from Guyana, Alexander had no criminal history when he was arrested in downtown Eugene about two years ago.

A passer-by had called 911 to report a man pushing a woman into a parked car. A responding police officer reported finding Alexander holding his girlfriend down in the car’s back seat, his forearm against her throat.

Both the girlfriend and Alexander said he was simply trying to stop her from driving while drunk. And when the case went to trial more than two months later, a jury swiftly acquitted him on all his charges: misdemeanor strangulation, harassment and resisting arrest.

For nine weeks between his arrest and acquittal, however, Alexander lived under conditions imposed by pretrial services officers under Lane County’s Victim Safety Program: No contact with the alleged victim. No entering a two-mile radius around the apartment they shared. No drinking alcohol. Observing a 6 p.m. to 6 a.m. curfew. Wearing an electronic ankle bracelet and paying $140 a week to cover the cost of officials monitoring his whereabouts.

Such restrictions — typical for local domestic violence defendants released from jail before their trials — are excessive, many defense lawyers say.

But local court officials defend them. The restrictions have dramatically improved victim safety and defendant court appearance rates in a county unable to fund enough jail beds to keep potentially dangerous people in jail, they say.

Violent cases

The safety program was created by court and county officials in 2004 after a string of 11 local domestic violence fatalities ended in a horrific, high-profile case: Springfield resident Paula Benitez was murdered by her ex-husband, who was released for lack of jail space while awaiting trial for defying a court order to stay away from her. After a standoff with police, Tomas Ortega-Benitez turned his gun on himself.

“Everyone in Lane County remembers that somebody was released and there was a murder-suicide,” said prosecutor Bill Warnisher, who leads the Lane County District Attorney’s Office domestic violence team. He credits the safety program for ensuring that hasn’t happened again.

“It’s a good system,” Warnisher said. “Defendants can get out of jail and go to work and we can monitor their whereabouts so the victim can feel safe.”

But many defense attorneys view the program very differently and have sought a meeting with Lane County Circuit Court officials to press for changes.

They allege that domestic violence and other defendants released pretrial in Lane County face far more onerous and costly restrictions than their counterparts in other Oregon counties. They say some clients plead guilty simply because postconviction sanctions are less severe than their pretrial restrictions. The lawyers also question the court’s decision to delegate to pretrial services officers — executive branch employees — the authority to set release terms.

The victim safety program treats all defendants as if they are guilty, charged Alexander’s attorney, John Kolego, and its collective “deprivations of liberty” add up to a major injustice.

“This takes our criminal justice system and turns it upside down,” he said. “It seems to me tremendously wrong. We should afford them the presumption of innocence.”

Presumed innocent

Defendants under pretrial monitoring are presumed innocent, said Lane County Parole and Probation Manager Joan Copperwheat, one of the safety program’s creators.

An officer from her department oversees the monitored defendants, using weekly meetings and surprise home visits to ensure they are complying with release agreement terms. But the officer does not have the same arrest authority over defendants as over convicted offenders on probation, she said.

Plus, Lane County defendants have more freedom than they would in other counties with enough jail space to keep them incarcerated, Lane County Circuit Court Administrator Liz Rambo said.

“In Washington County, for instance, you might not get out of jail at all on a pending domestic violence case,” she said.

Pretrial officials at Washington and several other Oregon counties acknowledged that they have more capacity to keep domestic violence defendants in jail until trial. But all also release many such defendants pretrial, particularly if they are charged with misdemeanors and have no criminal record.

Benton, Washington, Jackson and Multnomah counties all said they do not require defendants to stay two miles away from alleged victims. These counties said they mostly simply prohibit contact with the alleged victim.

Release officers here can tailor conditions to a defendant’s circumstances, but Lane County appears to use particularly restrictive conditions as the starting point, defense attorneys say.

“I do not know of another county that has such a stringent policy on pretrial release,” said Rob Raschio, president of the Oregon Criminal Defense Lawyers Association. “Protecting the alleged victim is important, but ... other counties have less restrictions and achieve the same result.”

Multnomah County, for example, is “very selective” about imposing pretrial release conditions such as curfews and no alcohol, said its community justice manager Don Trapp.

“If we have to put all these conditions on this person in order to feel good about releasing them, we’re going to keep them in custody,” he said, but added: “I’m absolutely not second-guessing folks in Lane County. It’s a huge public safety concern.”

‘National model’

The U.S. Department of Justice likes Lane County’s Victim Safety Program so much that the federal agency has just renewed funding for a third, two-year term. “It’s a national model,” Copperwheat said.

The program began six years ago with money from a federal Violence against Women Act grant obtained jointly by the court, local parole and probation and WomenSpace, a local nonprofit agency serving domestic violence victims.

A representative of the local defense bar was part of a team that approved an assessment form used by pretrial officers to determine conditions for all defendants released for lack of jail space or because they posted a bail amount set by the court, Rambo said. The eight-page form includes questions about past convictions, failures to appear in court, and violations of protection orders.

Besides providing more security for alleged victims, the safety program has dramatically boosted the number of domestic violence offenders who show up for trial, said Brooke Marshall, who supervises the pretrial services office.

Only seven of 332 defendants monitored under the previous two-year grant failed to appear on their court dates, according to Lane County Planner Susan Sowards’ application for the latest grant. More than two-thirds of 317 defendants convicted in court completed probation with “zero violations” after conviction, she said.

Lane County Circuit Court began delegating release condition decisions to pretrial release officers after developing the assessment questionnaire to guide such decisions, Rambo said. It is not alone in doing so: State law allows presiding judges to order such arrangements, and the process is sanctioned by the state’s top judge, Oregon Supreme Court Chief Justice Paul De Muniz. Moreover, defendants have the right to a hearing before a judge to appeal their release terms, Rambo noted.

Burden of proof

Attorneys say that arrangement unfairly places the burden of proof on defendants, and that Lane County Circuit judges are reluctant to overturn conditions imposed by pretrial officers.

“ ‘I’m not going to second-guess pretrial services,’ ” is a common refrain, defense lawyers say.

Warnisher, the prosecutor, said judges have amended release agreements. “But generally, these pretrial services decisions are upheld by the court,” he acknowledged. “It’s not a matter of deference. It’s just indicating that they are making good decisions.”

And he points to a high conviction rate among monitored defendants — 95 percent — as evidence pretrial services officers are not placing undue restrictions on innocent suspects.

Defense attorneys have a different take on the conviction rate.

“In practice, people who are not guilty are pleading guilty because they can obtain less restrictive conditions after conviction than pretrial,” defense attorney Hugh Duvall said.

Many defendants who plead guilty to a first-time misdemeanor domestic violence offense receive “bench probation” — they don’t have to report to a probation officer — and an order to have “no offensive contact with the victim.”

Lost paycheck

Consider the case of Springfield resident Wendy Padilla, 32. The medical assistant was arrested April 16 after a dispute with her ex-husband. According to a police report, she threatened him and held a baseball bat at waist level after he opened the door of her car to talk to one of their children. Witnesses described her as the aggressor. She was charged with misdemeanor menacing and physical harassment.

After posting bail, Padilla was released under conditions that included wearing and paying for a monitoring bracelet; not entering any area within a two-mile radius of her ex-husband’s home, workplace or school; and having no contact with their two sons.

Her off-limits area included the medical clinic where she works and the house she had just purchased under the federal first-time home-buyer program, Padilla said in a recent interview. She lost her paycheck as she faced the expense of electronic monitoring and renting an apartment outside her exclusion zone.

Though she had hired an attorney, more than a month passed before she got a hearing before a judge, who amended her release terms so she could go to her workplace.

She felt lucky that they’d held her job for her, Padilla said, “but it was really hard (financially). I couldn’t pay even the bracelet.”

She said she pleaded guilty to the menacing charge rather than wait for trial because she feared losing her new home. Padilla said she had hoped to testify at trial that she started carrying the bat for protection after her ex-­husband repeatedly came to her house unannounced, pounding and kicking at her door. Instead she took a plea deal. The harassment charge was dropped. She was sentenced to two years’ probation, to take domestic violence classes and to have no contact with her ex-husband.

No compensation

Many defense attorneys say they believe judges would better tailor release conditions to the circumstances of each case. Pretrial services workers are “professional and do a good job,” Duvall said. But they operate in a culture of “orthodoxy” on domestic violence, he and Kolego said.

“Immediately the guy’s an abuser and the victim is an enabler,” Kolego said. “And the victim is always telling the truth.”

“That’s a grave flaw,” Duvall said. In many domestic violence cases, he said, “the two people involved are the only ones who know what happened. But the assumption is that everyone’s going to go kill their spouse.”

Acquitted defendants receive no compensation for lost wages when they couldn’t go to work, for rent paid at a second place when they couldn’t go home or for the cost of their monitoring bracelets and legal fees, Kolego and Duvall said.

Warnisher agrees that that is sometimes the case, but says such burdens fall on many types of defendants who are acquitted.

“We may find that some of the conditions are more onerous in domestic violence cases because of their inherent potential for intimidation and retaliation because the parties’ lives are so intertwined,” the prosecutor said.

Warnisher also disputed the defense attorneys’ contention that accusers are always believed in Lane County, saying his office declines to prosecute hundreds of alleged domestic violence incidents each year.

He said prosecutors declined to file charges in about 39 percent of the 3,223 incidents referred to them by police agencies in the four-year period ending in 2009.

Rambo confirmed this week that court officials plan to meet with local Public Defender Services director Greg Hazarabedian and others to discuss “a number of different criminal case processing issues,” but that pretrial supervision of domestic violence defendants would not be a specific topic. Lane County Circuit Court Presiding Judge Mary Ann Bearden declined to be interviewed for this story.

Kolego and Duvall say they are glad there has been no tragedy like the Benitez case in more than six years. But they say there’s no way to prove that the stringent release conditions are the reason.

If a defendant is determined to commit murder, Duvall asked, “is that ankle bracelet really going to stop it?”